Florida/Georgia Personal Injury & Workers Compensation

...ed by canine characteristics such as "biting, barking, chasing, jumping, vicious or rambunctious conduct," Mapoles, 350 So.2d at 1139 (Smith, J., dissenting), or some other specific affirmative or aggressive act by a dog toward the injured party. In section 767.04 certain total immunities from owner liability are granted....

...[2] The district court framed the question as: "Is a city's failure to enforce a valid ordinance a planning decision as opposed to an operational one?" 433 So.2d at 670. We choose to rephrase and narrow the question. [3] The person bitten by a dog has a cause of action against the owner of the dog. § 767.04, Fla....

...e on the part of the agent of the dog's viciousness, since scienter is the gist of a common law claim for damages. Ferguson v. Gangwer, 140 Fla. 704, 192 So. 196 (1939). In that neither Walthal nor Hannon were the owners of the dog, it is clear that Section 767.04, Florida Statutes, placing liability on owners of dogs which bite persons, regardless of the former viciousness of such dogs or the owners' knowledge of such viciousness, is not implicated in this case....

...1906, and still appears, as Section 767.01, F.S.A., as follows: "Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." In 1949 the legislature enacted Chapter 25109, Laws of Florida, now Section 767.04, F.S.A., as follows: "767.04 Liability of owners "The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as m...

...the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law." By its express wording the 1949 Act, Section 767.04, F.S.A., is concerned with a dog owner's liability for dog bites, but the instant case involves an injury other than by biting....

...Willing, of Dean, Adams, George & Wood, Miami, for appellees. ADKINS, Justice. This is an appeal from a summary final judgment entered for Defendants and *682 against Plaintiffs in this personal injury action by the Dade County Circuit Court, specifically passing upon the constitutionality of Fla. Stat. § 767.04, F.S.A. We have jurisdiction, Fla. Const., art. V, § 4(2), F.S.A; F.A.R. 2.1(a) (5), (a), 32 F.S.A. The challenged statute in this case is part of Title XLIII, Torts, and of Ch. 767, Damage by Dogs. The pertinent portion of the statute, Fla. Stat. § 767.04, F.S.A....

...Beside the counter is a gate, with signs on it, "Beware of Dog" and "Keep Out." As Mrs. Carroll stood at the counter, the dog, which had not been previously seen or heard, lunged and bit her on the face. Suit was brought against the dog owner and insurer, on the basis of tort under Fla. Stat. § 767.04, F.S.A., and also common law. The trial judge ruled that Fla. Stat. § 767.04, F.S.A., superseded the common law and that liability did not lie under the statute since a "Bad Dog" sign was posted. Plaintiffs say the statute is unconstitutional. The trial judge entered summary final judgment in favor of Defendants. This appeal followed. The contention that Plaintiffs have a cause of action both under Fla. Stat. § 767.04, F.S.A., and the common law is without merit....

...s, departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So.2d 127 (Fla. 1951); Vandercar v. David, 96 So.2d 227 (Fla.App.3rd, 1957); Knapp v. Ball, 175 So.2d 808 (Fla.App.3rd, 1965). It is concluded that Fla. Stat. § 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute....

...§ 4, Declaration of Rights (1885); Fla. Const., art. I, § 21, Declaration of Rights (1968). This constitutional provision provides that the courts of the State shall be open to any person for redress of any injury. The contention is not well taken, since Fla. Stat. § 767.04, F.S.A., does not take away a right of redress for injury; rather, it provides that a dog owner shall be liable even without the common law requirement of scienter for injuries caused by his dog, but that under certain circumstances, includ...

...Weinstein of Schwartz, Steinhardt, Weiss and Weinstein, North Miami Beach, for respondents. ADKINS, Justice. The following question has been certified as being of great public importance: Is the doctrine of equitable estoppel available to avoid the exemption from liability created by F.S. 767.04? Yorke v....

...As the Yorkes approached the building behind the house, a dog barked and lunged at the gate which the Nobles had left unsecured. This caused the gate to open slightly and as Mrs. Yorke attempted to close the gate, the dog bit her finger. The Yorkes sued for damages pursuant to section 767.04, Florida Statutes (1981)....

...The trial court granted summary judgment in favor of the Nobles and denied the Yorkes' request for leave to amend to sue Jerry Noble upon a theory of common law liability as a property owner who did not own the offending canine. The trial court's order of summary judgment was based upon that portion of section 767.04 which provides that a property owner who displays an easily readable "Bad Dog" sign in a prominent place on the premises is absolutely immune from liability for any damages resulting from a dog bite. The Fourth District Court of Appeal reversed, finding that the doctrine of equitable estoppel applies to the facts of this case and is available to avoid the exemption from liability created by section 767.04....

...In Florida, the dog-bite statute supersedes the common law and provides the exclusive remedy in dog-bite actions brought by an economic invitee against a business establishment which owns the dog. Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla. 1984). Section 767.04 imposes absolute liability upon the owner of a dog for any injury caused by the dog regardless of scienter and provides absolute defenses by which a dog owner may escape liability from a dog bite injury inflicted by his dog....

...at a dog owner may escape liability if an easily readable sign with the words "Bad Dog" is displayed in a prominent place on the premises. The Nobles argue that the entry of summary judgment in their favor was proper because they fully complied with section 767.04 which relieves a dog owner from liability if an easily readable sign including the words "Bad Dog" is displayed in a prominent place on the premises....

...The Yorkes assert that the doctrine of equitable estoppel is a *31 bar to the statutory defense in this case because Mrs. Noble told Mr. Yorke to ignore the sign because the dog was secured. We agree with the Yorkes and hold that the tort immunity of 767.04 does not extend to a dog owner who affirmatively directs a business invitee to ignore the "Bad Dog" sign displayed on the premises....

...We hold that the Yorkes are entitled to seek damages from the Nobles despite the fact that the Nobles complied with the literal terms of the statute by placing an easily readable sign containing the words "Bad Dog" on the premises. Our holding fully comports with the intent of the legislature and prior case law interpreting section 767.04....

...dog. In denying the Yorkes' request for leave to amend, the trial judge referred to Belcher and stated that "I think the Supreme Court has presently said you can't travel under common law." However, in Belcher, we noted that the strict liability of section 767.04 is limited to dog owners and a dog-bite victim may sue the non-owner of the dog upon a theory *32 of common law liability....

...Consequently, he refrained from touching her. Shortly thereafter, petitioner returned to the location of the kitchen, began stroking the dog on the top of the head and scratching her under the chin, whereupon petitioner was bitten on the lip. Pursuant to Sections 767.01 and 767.04, Florida Statutes (1975), [1] petitioner sought *23 damages from respondents....

...denied 312 So.2d 752 (Fla. 1975); Vandercar v. David, 96 So.2d 227 (Fla. 3d DCA 1957). We agree with petitioner that the jury should not have been instructed separately on assumption of risk but should have been charged solely on the defenses expressed in Section 767.04....

...ent of scienter, [3] and make the dog owner the insurer against damage done by his dog. In Carroll *24 v. Moxley, 241 So.2d 681 (Fla. 1970), which prior to the instant cause was this Court's latest exposition on the subject statute, [4] we held that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute....

...Beside a counter inside was a gate with signs on it warning "Beware of Dog" and "Keep out." While plaintiff knew that the dog had previously bitten a customer, it had always been friendly to her. However, during this latest visit the dog bit her on the face. Plaintiff brought suit under Section 767.04, Florida Statutes, and also under the common law. The trial judge ruled that Section 767.04 superseded the common law and that liability did not lie under the statute since a "Bad Dog" sign was posted. He then entered summary final judgment in favor of defendant and plaintiff appealed to this Court. We stated: The contention that Plaintiffs have a cause of action both under Fla. Stat. § 767.04, F.S.A., and the common law is without merit....

...departing from the common law doctrines grounded in negligence. See Romfh v. Berman, 56 So.2d 127 (Fla. 1951); Vandercar v. David, 96 So.2d 227 (Fla.App. 3rd, 1957); Knapp v. Ball, 175 So.2d 808 (Fla.App. 3rd, 1965). It is concluded that Fla. Stat. § 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute....

...relied on to establish assumption of risk by the plaintiff, through inciting and provoking or inducing the dog's playful conduct which caused her to fall. (Emphasis supplied) 96 So.2d at 228. The court then went on to distinguish Section 767.01 from Section 767.04, noting that the latter by its express wording is concerned with a dog owner's liability for dog bites while the former applies to injuries to a person caused by a dog other than by biting. Appellant argued that Section 767.04 expressly allowing statutory defenses was applicable to an injury caused by an animal other than a dog bite injury. Appellee contended that Section 767.04 applied only to dog bite damage and that if Section 767.04 repealed and superseded Section 767.01 pursuant to this Court's holding in Romfh v....

...[6] Thus, while these cases were conceptually accurate in finding that the defense to the statutory right of action was predicated upon provocation of the dog, as enunciated in the statute, they incorrectly classified this defense as assumption of risk. *26 In sum, we find that a dog owner who is brought to trial pursuant to Section 767.04, Florida Statutes (1975), has available to him only the defenses expressed in the statute....

...BOYD, ENGLAND and HATCHETT, JJ., concur. OVERTON, C.J., dissents. NOTES [1] § 767.01, Fla. Stat. (1975), reads as follows: " Owners responsible. — Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons." § 767.04, Fla....

...them to do; their inability in that regard often resulting practically in a denial of justice." [3] Fla.Rev.Gen.Stat. § 2341 (1892) was included as Sec. 7044 of Compiled General Laws, 1927, and was reenacted in 1941 as § 767.01, Fla. Stat. (1941). § 767.04 was enacted in 1941 as S. 1, Chap. 25109, Laws of Florida (1949). [4] In Seachord v. English, 259 So.2d 136 (Fla. 1972) (Ervin, J., dissenting), a case dealing with § 767.04, this Court discharged the writ of certiorari as being improvidently granted....

...[6] Other cases, in citing Vandercar, blindly declare in dictum that assumption of risk is a valid defense under the statute. Allstate Insurance Co. v. Greenstein, supra; Hall v. Ricardo, supra. Yet, neither of the cases elucidate what constitutes assumption of risk within the context of § 767.04, Fla....

...s (1981), and as a defense for the owner of the premises *216 where dogs are located but who does not own the dogs. We agree with the district court that the Fireman's Rule, as a common law defense, does not apply to claims under sections 767.01 and 767.04, Florida Statutes (1981)....

...t of the backyard. It is undisputed that the dogs were owned by Alfred Sklar individually and Dr. Olga Ferrer had no ownership interest in the animals. The district court, in considering the claim under section 767.01, held the defenses available in section 767.04 are also applicable to causes of action accruing under 767.01....

...considering personal injuries which did not involve a statutory cause of action. We agree with the Third District Court of Appeal in the instant case that there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04, Florida Statutes (1981)....

...The majority of this Court determined that the statutory claim superseded any common law causes of action. We find the same principle and reasoning applies to common law defenses. We also agree with the Third District that only those defenses provided by statute under section 767.04 apply....

...EHRLICH, C.J., concurs in part and dissents in part with an opinion. EHRLICH, Chief Justice, concurring in part and dissenting in part. I agree with the majority that the Fireman's Rule, however defined, is not a defense to actions brought under sections 767.01 and 767.04, Florida Statutes (1981)....

...Belcher Yacht, Inc., 424 So.2d 962 (Fla. 3d DCA 1983). The third district certified the appeal as passing on a question of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. The question certified is: WHETHER SECTION 767.04, FLORIDA STATUTES (1979) SUPERSEDED THE COMMON LAW AND NOW PROVIDES THE EXCLUSIVE REMEDY IN A DOG BITE ACTION BROUGHT BY AN ECONOMIC INVITEE AGAINST A BUSINESS ESTABLISHMENT WHICH OWNS THE DOG....

...ectly determined that there was no issue of fact on the statutory claim and a directed verdict on that claim was appropriate. [1] We agree with the district court's holding on this issue insofar as it applies to the dog owner, Belcher, but note that section 767.04 pertains only to the owner. It is silent as to the custodian or keeper of a dog who is not the owner. [2] It neither creates liability on the part of Herner nor exonerates him because of the posted sign. The district court decision addresses the issue of whether section 767.04 is an alternative to rather than an abrogation of the common law. In addressing this issue the district court recognized that Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla. 1978) and Carroll v. Moxley, 241 So.2d 681 (Fla. 1970), hold that section 767.04, Florida Statutes (1979), superseded the common law in those situations covered by the statute....

...evolution which imposes liability with certain statutory exceptions. The district court opinion and the briefs ably track this progression. Carroll and Donner, decided thirteen and five years ago, respectively, placed the legislature on notice that section 767.04, Florida Statutes, enacted in 1949, superseded the common law on dog bites....

...In order to obviate further confusion, we expressly overrule any earlier decisions of the district courts of appeal to the contrary and recede from any decisions of this Court to the degree they appear to conflict with this opinion. As we noted above, section 767.04, Florida Statutes (1979), applies only to the dog owner....

...ALDERMAN, C.J., and ADKINS, EHRLICH and SHAW, JJ., concur. BOYD, J., concurs in part and dissents in part with an opinion. OVERTON and McDONALD, JJ., dissent with opinions. BOYD, Justice, concurring in part and dissenting in part. I concur with the majority's holding that section 767.04, Florida Statutes (1979), supersedes the common law and in this case absolves Belcher Yacht, Inc., and Belcher Yacht Sales, Inc., of any liability....

...ly or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words "Bad Dog." § 767.04, Fla....

...] lack of contractual duty, and strict liability on the part of the Wendlands. From a verdict and judgment of $25,000 in favor the plaintiff against the defendants Robert and Donna Wendland this appeal has been taken. Plaintiff's case is bottomed on Section 767.04, Florida Statutes....

...Josephson, 173 So.2d 444 (Fla. 1965), the Supreme Court decided that the two statutes were not inconsistent. In that case the Court said: "In sum, the first statute [Section 767.01] fixes liability on the owner for any damage at all caused by his dog; the second statute [Section 767.04] puts upon him responsibility only for injury caused by the bite of his dog." (Emphasis supplied.) 173 So.2d at 446. Hence, it is unnecessary to discuss Section 767.01, supra, and the numerous cases [4] involving damages occasioned by other acts of dogs. [5] *370 Turning now to Sec. 767.04, it is clear that this enactment was a recognition that the need to protect an agrarian society from depredations of dogs on live stock and crops, as was the purpose of the then existing statute, 767.01, was no longer the main purpose to be se...

...carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words `Bad Dog.'" Sec. 767.04, Fla....

...The point for determination is whether or not a dog owner is relieved of damages for injury by his dog to one lawfully on his *128 premises if he has displayed in a prominent place thereon a readable sign bearing the words "Beware of Dogs" the statute, Section 767.04, F.S.A., requiring that he have displayed on his premises a sign bearing the words "Bad Dog." It is agreed that under the early common law scienter was the gist of a claim for injuries to one caused by a vicious dog....

...196, this Court held that the above statute abolished the element of scienter and made the dog owner liable for damages incident to the bite of his dog. See also Reid v. Nelson, 5 Cir., 154 F.2d 724. In 1949 the legislature enacted Chapter 25109, Laws of Florida, now Section 767.04, F.S.A., as follows: "767.04....

...is read with the body of the Act as quoted above, we do not think the conclusion can be escaped that as to injury to persons by dogs Chapter 25109 repealed and superseded Section 767.01, F.S.A., and is now the governing law. In fine, Chapter 25109, Section 767.04, abolished the element of scienter and makes the dog owner liable to any person bitten by his dog if he is (1) on a public place or (2) lawfully on a private place, including the property of the dog owner....

...that before entering the premises plaintiff saw and understood the sign, that plaintiff did nothing to provoke defendant's dogs but while he was on the premises they attacked and bit him and he was forced to take refuge in a tree near by. *129 Since Section 767.04 is the applicable law and it is admitted that the plaintiff was lawfully on defendant's premises, and that he did not provoke the dogs, it would seem that the question here reduces itself to that of whether or not the sign with the wor...

...dangerous thing. While one or two jurisdictions insist that there is no liability without some negligence in keeping the animal, by far the greater number impose strict liability." (Italics supplied) Additionally, we observe that Florida has enacted § 767.04, F.S.A., [5] relating to dogs, which abrogates the permissive "one bite" rule of the common law....

...[6] Our statute, however, has in effect imposed strict liability on a dog owner (from which he can absolve himself only by complying with the warning proviso of the statute). It would result in a curious anomaly, then, if we were to adopt the negligence concept as a basis for liability of an owner or keeper of a tiger, while § 767.04, supra, imposes potential strict liability upon him if he should trade the tiger for a dog....

...Campbell of Frost & Purcell, P.A., Bartow, for appellants. Louis L. Suprina, Winter Haven, for appellees. PER CURIAM. Appellants, Shaun Leo Reed, a minor, by and through his parent and next friend, May Elretta Lawrence, and May Elretta Lawrence, individually, filed an action under section 767.04, Florida Statutes (1985), seeking damages which resulted when Shaun was attacked by a dog owned by the appellees, Felix and Martha Bowen....

...w of mischievously or carelessly provoking or aggravating the dog. Rather, for the reasons discussed below, we hold that the question of whether a person of any age mischievously or carelessly provokes or aggravates a dog within the *1267 meaning of section 767.04 [1] is a question of fact for the jury....

...[2] In arriving at its decision, the first district applied the presumption, enunciated in Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), that in the absence of a legislative declaration, any child under the age of six is conclusively presumed incapable of committing contributory negligence. Section 767.04 modified the common-law basis of recovery for dog-bite injuries, which was grounded in negligence, by making the dog owner an insurer, with only certain exceptions, against damage caused by his dog....

...When the language of a statute is clear and not unreasonable or illogical in its operation, the court may not go outside the statute to give it a different meaning. In re Estate of Levy, 141 So.2d 803 (Fla. 2d DCA 1962); see also, Jones v. Utica Mutual Insurance Co., 463 So.2d 1153 (Fla. 1985). In this regard, section 767.04 is replete with all inclusive terms such as "any dog," "any damages," and "any person." We find that, according to the plain and ordinary meaning of those terms, we are precluded from automatically exempting children below a certain age from the statute's operation....

...on the issue of their liability. Significantly, that court did not rule as a matter of law that the child was incapable of mischievous or careless behavior. In Flick v. Malino, 374 So.2d 89 (Fla. 5th DCA 1979), the court considered the provision in section 767.04 protecting from liability a dog owner who displays "in a prominent place on his premises a sign easily readable including the words `BAD DOG.'" The court reversed an order granting summary judgment in favor of the dog owner and held th...

...the child exhibits intelligent discretion." Annot., 4 ALR 3d 1396 (1965). We conclude that the trial court correctly instructed the jury that in deciding whether the child mischievously or carelessly provoked or aggravated the dog as contemplated by section 767.04, they should consider all the circumstances surrounding the incident, including the age and maturity of the child....

...; and, (3) appellee could control the dog's presence. The existence of a duty in a negligence action is a question to be decided as a matter of law. McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992). Although the so-called "dog bite" statute, section 767.04, Florida Statutes (1993) controls actions against a dog's owner, actions against a non-owner must be brought upon a theory of common law liability....

...App.2d 315, 209 P.2d 114, 117, which quotes from Vol. 3 C.J.S. Animals § 150, pages 1254 and 1255. The District Court erroneously misapplied Carroll v. Moxley, Fla., 241 So.2d 681, in support of its position negating contributory negligence. That case involved a dog bite and construed F.S. Section 767.04, F.S.A., and not F.S....

...1986), lays to rest any uncertainty that may have existed entitling a dog-bite victim to sue the non-owner of a dog — the victim may pursue the non-owner upon a common law liability claim. Id. at 31. The insulation from dog bite liability provided a dog owner through compliance with section 767.04, Florida Statutes (1986), does not extinguish the possibility of pursuing the non-owner who can be linked to the dog....

...Huie v. Wipperfurth, 632 So.2d 1109 (Fla. 5th DCA 1994), which presents the following certified questions: 1. IS THE INDEPENDENT CONTRACTOR EXCEPTION TO THE DANGEROUS INSTRUMENTALITY DOCTRINE AVAILABLE TO A DOG OWNER AS A DEFENSE TO AN ACTION UNDER SECTION 767.04, FLORIDA STATUTES? 2. UNDER SECTION 767.04, DOES THE TERM "OWNER" INCLUDE A KENNEL OWNER OR VETERINARIAN WHO UNDERTAKES THE CARE, CUSTODY, AND CONTROL OF A DOG PURSUANT TO AN AGREEMENT WITH THE DOG'S ACTUAL OWNER? Huie, 632 So.2d at 1113....

...When Huie turned to leave, however, Duke jumped on her back and bit her several times on the back and on the *117 right arm and shoulder. To Huie's knowledge, Duke never before had behaved in a hostile or otherwise unusual manner. Id. at 1110. Huie attempted to recover damages from Wipperfurth pursuant to section 767.04, Florida Statutes (1989)....

...[2] The district court reversed, based on its finding that pursuant to Carroll v. Moxley, 241 So.2d 681 (Fla. 1970), and Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla. 1978), common-law defenses were unavailable to an action brought under section 767.04 and that pursuant to Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla. 1984), the term "owner," as used in section 767.04, only applied to the dog's actual owner....

...a dog owner's liability absolute, with certain enumerated exceptions. The owner cannot escape liability by virtue of the dangerous instrumentality doctrine. See Donner, 358 So.2d at 24 (the only defenses available to a dog owner are those stated in section 767.04). Since the doctrine itself is inapplicable to an action brought pursuant to section 767.04, the independent contractor exception is likewise inapplicable....

...Accordingly, we disapprove Wendland to the extent it conflicts with this opinion. We answer the second certified question in the negative in keeping with our *118 decision in Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla. 1984). In Belcher, this Court found that "section 767.04 pertains only to the owner. It is silent as to the custodian or keeper of a dog who is not the owner." [3] Id. at 1112. In so finding, we compared the wording of section 767.04, "the owners of any dog," with the wording of section 767.05, "an owner or keeper of any dog." [4] In line with Belcher, we accord the term "owner" its common meaning and find that owner, as used in section 767.04, does not include a kennel owner or veterinarian who undertakes the care, custody, and control of a dog pursuant to an agreement with the dog's actual owner....

...In sum, the decision of the court below is approved, both certified questions are answered in the negative, and Wendland is disapproved to the extent it conflicts with this opinion. It is so ordered. GRIMES, C.J., and OVERTON, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Section 767.04 states: The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be...

...ions cited. ... Such an exception would not be applicable where members of the general public are injured since they are not embraced in the relationship created by the independent contract. Id. at 298-99. [3] Belcher interpreted the 1979 version of section 767.04 and this opinion is reviewing the 1989 version....

...Appellant then started back toward the house and was attacked and severely bitten by the male dog. Appellant stabbed the dog in self-defense. Appellant was taken to the hospital and the dog was taken to the veterinarian. Appellants sued appellees in two counts, claiming first that they were strictly liable as dogowners under Section 767.04, Florida Statutes (1977), and second that they were liable under the common law for allowing dangerous animals to occupy their property....

...2d DCA 1986), which expressly and directly conflicts with Harris v. Moriconi, 331 So.2d 353 (Fla. 1st DCA 1976), cert. dismissed, 341 So.2d 1084 (Fla. 1976). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The Bowen's dog bit four-year-old Shaun Reed on September 2, 1983. Shaun brought suit pursuant to section 767.04, Florida Statutes (1983), which provides: The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be...

...The jury returned a verdict in favor of the Bowens and the trial court entered final judgment accordingly. The district court affirmed, rejecting the argument that, as a matter of law, a four-year-old cannot mischievously or carelessly provoke or aggravate a dog. The court found that section 767.04 makes the dog owner an insurer against damage caused by his dog, subject to certain enumerated exceptions, thus modifying the common law basis for recovery grounded in negligence, and superseding common law defenses....

...This rule was adopted by the Supreme Court of Florida in Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), but, as with all common law rules, it was held to apply "[i]n the absence of a legislative declaration." The instant cause involves just that sort of legislative declaration, for Florida Statute 767.04 states: "....

...ischievously or carelessly provoke [sic] or aggravate the dog ...[.]" (emphasis supplied)[.] The legislature has made the affirmative defense available without regard to the age (or other disability) of the person committing the act. Florida Statute 767.04 thus modifies the common law rule relating to negligence of infants just as it modifies the common law in making the dog owner the insurer against damage by his dog....

...dog. [1] As a result, the common law requirement of establishing prior knowledge of the owner of the vicious propensity of the dog was not necessary in order to recover for injury caused by such dog. [2] Thereafter, in 1949, the legislature adopted § 767.04, which provided, in pertinent part: "The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness." The determinative question on appeal, is what effect, if any, did the subsequent legislation (§ 767.04) have on the prior statute (§ 767.01). *465 The Supreme Court seemed to answer this question by way of dicta [3] in Romfh v. Berman, Fla. 1951, 56 So.2d 127 when Justice Terrell said: "The title to Chapter 25109 [§ 767.04] is `An Act to Provide for the Recovery of Damages by Persons Bitten by Dogs and Creating a Liability of the Owners of Such Dogs.' When this title is read with the body of the Act as quoted above, we do not think the conclusion can be escap...

...It is our conclusion that Romfh is distinguishable from the present case, in that, here the plaintiff was not bitten by the dog while in Romfh the injury occurred by bite. It is obvious from the careful reading of the two sections that § 767.01 was superseded by § 767.04 only in regard to dog bites, because § 767.04 says "bite" not injury....

...1958, 102 So.2d 617 where the Supreme Court in a per curiam decision without opinion affirmed a dog bite case, and as a result Justice Drew found it necessary to write a dissent claiming that the trial judge erred in making the following rulings: "This suit is based on 767.04, Florida Statutes, F.S.A....

...In our case, the trial court erred in requiring the plaintiff to allege prior knowledge by the owner of the vicious propensity of the dog by its owner, in the complaint. This result obtains because this case is controlled by § 767.01 in that it is a dog injury case not a dog bite case, thus, the rule existing prior to § 767.04 applies, to-wit, the owner is responsible for the acts of his dog regardless of any prior knowledge of vicious propensity....

...e defendant also denied that this had occurred. After this verbal exchange, Hall pushed the car out of the driveway into the street. At the jury trial the defendants relied, inter alia, on an affirmative defense of provocation, per the provisions of section 767.04, Florida Statutes (1977), and the trial court gave a requested defense instruction in regard to provocation....

...ORFINGER, J., and GREEN, OLIVER L., Associate Judge, concur. NOTES [1] Owners Responsible. Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons. § 767.01, Fla. Stat. (1977). [2] The defenses set forth in section 767.04, which concerns dog bites, are also applicable to other damages caused by a dog under section 767.01. See Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979). Section 767.04 reads: Liability of owners....

...Suddenly the dogs charged Rattet who immediately leaped to the top of the cage and then to the nearby fence. He jumped down from the top of the fence and suffered physical injuries as a result. Rattet filed the present lawsuit for damages against Dual Security Systems and alleged liability pursuant to Section 767.01 and 767.04, Florida Statutes (1975) and common law negligence....

...yard intervals and were in place on the date of the incident. The trial judge entered a summary final judgment based on extensive findings in favor of Dual Security Systems. We affirm. With regard to Rattet's attempt to impose liability pursuant to Section 767.04, Florida Statutes (1975), set forth below, the injury must have been the result of a bite. ..... "767.04 Liability of owners....

...[2] We now consider the propriety of the entry of the summary judgment for Dual Security Systems under Section 767. 01, Florida Statutes (1975), based upon the defense of posting the "bad dog" signs. Hereunder we are called upon to determine whether the defenses under Section 767.04 are also available to a dog owner who is sued pursuant to Section 767. 01. Rattet argues these defenses are not available. Under the statutory liability created by Section 767.01 and 767.04, the owner of a dog is cast in the role of an insurer and he *951 is liable for damages caused by his dog....

...2d DCA 1972); and Allstate, supra . However, our Supreme Court in Donner v. Arkwright-Boston Manufacturers Mut., 358 So.2d 21 (Fla. 1978) clearly held that assumption of the risk is not a defense available to a dog owner who is brought to trial pursuant to Section 767.04 and has available to him only those defenses expressed in the statute. The court did not, however, determine the availability of these defenses to a dog owner for injuries caused to a person other than a dog bite. Sections 767.01 and 767.04 having made an owner the insurer against damage done by his dog, we conclude that these statutory defenses are also available to the owner of a dog brought to trial under Section 767.01....

...the responsibility of proving scienter, that the dog owner, although an insurer, would still have available to him the defenses that he had met the standard of care required by the Legislative enactment — signs or provocation. The first sentence of § 767.04 does not talk about injury on the premises of the dog owner but talks about injury `....

...m. Defendant-appellants contend there was a question of fact as to how the accident occurred and thus, it was error to find them liable. We disagree. Subject to the following exception, a dog owner's liability for his dog biting anyone is based upon § 767.04, Fla....

...Although disputed, there was evidence that the dog advanced toward the plaintiff. Plaintiff ran from the house and was injured when she fell in the driveway. Suit was brought and the case was submitted to the jury on the theories of (1) assault, (2) statutory dog owner's liability under Section 767.04, Florida Statutes (1977), and (3) negligence....

...Staniszeski and Henry Staniszeski, appellants, appeal a final summary judgment entered against them and in favor of Ruth Walker and Estell Walker, appellees. We reverse. Appellants filed a complaint against appellees pursuant to sections 767.01 and 767.04, [1] Florida Statutes (1987) for damages *20 which resulted when a dog owned by appellees knocked down Mrs....

...The trial court, in granting the summary judgment, found as a matter of law, that Mrs. Staniszeski mischievously and carelessly provoked or aggravated the dog. The supreme court, in a dog bite case involving a four-year-old child, held that the statutory defense in section 767.04 that the person mischievously or carelessly provoked or aggravated a dog is a question of fact for the jury....

...NOTES [1] The pertinent parts of these statutes are as follows: 767.01 Dog owner's liability for damages to persons or domestic animals. — Owners of dogs shall be liable for any damages done by their dogs to sheep or other domestic animals or livestock, or to persons. 767.04 Dog owner's liability for damages to persons bitten....

...of such viciousness . ..; provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage.... §§ 767.01 and 767.04, Fla. Stat. (1987). [2] This defense, found in section 767.04, is applicable to an action filed pursuant to section 767.01....

...Plaintiff was bitten by a dog which had escaped from a fenced back yard when the owner, Thomas Johnson, accidentally left the gate open. Johnson was a tenant of the appellees, Donald and Virginia Howard. Plaintiff brought suit against the dog owner under section 767.04, Florida Statutes (1987), and those claims remain pending below....

...Appellee Cherokee Insurance Company is Moriconi's insurer. Resolution of the issues necessitate a thorough recitation of the agreed facts. [1] Plaintiffs' amended complaint specifically alleged that the action was brought under the provisions of F.S. 767.04....

...She then rode her bicycle *355 a short distance from "King" and walked back to comfort him, at which time "King" attacked her, biting her in the face. She did not mean to run over "King's" tail. She had never teased "King". Ruby was taken to the hospital where she received stitches in her face. F.S. 767.04, [3] with certain exceptions, makes the dog owner the insurer against damage by the dog....

...This rule was adopted by the Supreme Court of Florida in Swindell v. Hellkamp, 242 So.2d 708 (Fla. 1970), but, as with all common law rules, it was held to apply "[i]n the absence of a legislative declaration." The instant cause involves just that sort of legislative declaration, for Florida Statute 767.04 states: "......

...rson shall mischievously or carelessly provoke or aggravate the dog ..." (emphasis supplied) The legislature has made the affirmative defense available without regard to the age (or other disability) of the person committing the act. Florida Statute 767.04 thus modifies the common law rule relating to negligence of infants just as it modifies the common law in making the dog owner the insurer against damage by his dog....

...Malino's motion for summary judgment established that her husband was sole owner of the dog that bit Jennifer and that two clearly readable "bad dog" signs were posted on the fence surrounding the property. The trial court found that the "bad dog" signs complied with Section 767.04, Florida Statutes (1975), and that Jennifer's mother had actual knowledge of the signs and of the dog's propensities before the accident occurred. The court therefore concluded that Ms. Malino was entitled to immunity from liability under Section 767.04, which provides in relevant part: The owners of any dog which shall bite any person, while such person is ......

...when he is on such property upon invitation, expressed or implied, of the owner thereof; Provided, however, no owner of any dog shall be liable for any damages to any person ... if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words "Bad Dog." When Section 767.04 was enacted in 1949, it imposed liability on dogowners for their dogs' bites where the common law did not — where there was no proof of prior knowledge of the dog's propensity to bite....

...for the dogowner who prominently placed an easily readable "bad dog" sign on his property where the dog was kept. Thus, appellee Ms. Malino suggests here that her husband, if sued for Jennifer's dog bite, would have enjoyed the immunity afforded by Section 767.04; and she urges that her own liability cannot logically be greater than that of the dogowner himself....

...Thereupon, the trial court directed a verdict for the plaintiff against the appellant Hall and proceeded to the question of damages. Cases for damages for injuries by dogs are unique in the State of Florida in that they are governed by Fla. Stat. § 767, F.S.A., and specifically § 767.04 with regard to dog bites. In the instant case, the trial judge reached the decision that the liability being imposed by Fla. Stat. § 767.04 [1] was such that no reasonable defense could be presented on behalf of the defendant Hall....

...It is possible that the trial court's conclusion is absolutely correct. Nevertheless, we think that without allowing defendant to give evidence in support of his answer, the trial court is in error. For example, though contributory negligence may not be raised as a defense under the statutes (§ 767.01 and § 767.04, the latter confined by its terms to dog "bites"), assumption of risk and proximate causation may be raised as defenses....

...until the case is complete, i.e., until the defendant has presented his testimony. See Ahearn v. Florida Power & Light Co., Fla.App. 1959, 113 So.2d 751, reversed at 118 So.2d 21 upon other grounds. Reversed and remanded for a new trial. NOTES [1] "767.04 Liability of owners....

...On January 14, 1998, the Sutherlands filed their lawsuit against Mr. Pell, alleging the dog that attacked Calie was vicious, and that Mr. Pell, as the landlord, had actual or constructive knowledge of its viciousness. Thus, this dog bite case is based on the common law, not on statutory liability. See § 767.04, Fla....

...th Dorough ("Officer Dorough"), individually; and the City of Jacksonville Beach Florida (the "City"). Before the Court are: 1. Trammell's Motion for Summary Judgment on Counts I and II against the City — Fla. Stat. § 767.01 (Strict Liability) and § 767.04 (Strict Liability) (Dkt....

...d. at 1260. III. THE PENDING MOTIONS Following his release from Shands, Trammell filed suit in this Court. His Amended Complaint (Dkt. 42) contains six-counts: Counts I and II against the City for alleged violations of Fla. Stat. Sections 767.01 and 767.04 (Strict Liability); Count III against the City for Negligence; Count IV against the City pursuant to § 1983 for violations of Trammell's Fourth and Fourteenth Amendment rights to be free from unreasonable seizure and from excessive use of for...

...§ 1983 (the "Section 1983 Claims"). Trammell's Motion (Dkt. 46) Trammell's Motion asks the Court to grant summary judgment on Counts I and II of the Amended Complaint because the City is "strictly liable for [Trammell's] damages" pursuant to Fla. Stat. Sections 767.01 and 767.04....

...s caused by dogs. In particular, Section 767.01 reads as follows, "Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of "domestic animal" and "livestock" as provided s. 585.01." Section 767.04, reads in pertinent part: The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. Trammell claims that when interpreting these statutes, courts have held that Fla. Stat. Section 767.04 makes dog owners strictly liable to any person bitten by their dog and Section 767.01 makes dog owners strictly liable to any person whom their dogs damage. (Dkt. 46 at p. 3, internal citations omitted ). Essentially, Trammell claims that the plain meaning of Fla. Stat. Sections 767.01 and 767.04 makes every law enforcement agency strictly liable to every suspect apprehended by use of a police dog....

...ardless of how the legal responsibility is determined. The plain language of Section 768.28 requires the Court to deny Trammell's Motion the ground that it is barred by the City's sovereign immunity. The legislative intent behind Sections 767.01 and 767.04 makes clear that the strict liability statutes Trammell references are not meant to ensnare working police dogs....

...NOTES [1] Trammell claims that because the pleadings, discovery and disclosure material establish that there is no genuine issue of fact that he was lawfully in Cooper's back yard; Yacco was owned by the City; Yacco bit him; and as a result of that bite, Trammell sustained damages, Sections 767.01 and 767.04 would seem to make the City strictly liable for Plaintiff's damages.....

...t deny the petition without prejudice to Tedrow's and Bryant's right to assert the privileges in the circuit court. I. Background Jessica Tedrow filed an action in April 2013 against Cannon for strict liability under section 767.04, Florida Statutes (2011), Florida's dog-bite statute. Tedrow alleged that her daughter, Amber, was injured by Cannon's dog during a party at Cannon's home in April 2012. Section 767.04 provides in relevant part that "[t]he owner of any dog that bites any person ....

...Gawtrey for several reasons. First, the order fails to contain the necessary finding that the offer was not made in good faith. See Stofman, 729 So.2d at 960. Second, the trial court refers to the failure of Ms. Gawtrey to obtain a dismissal of the case on the theory that section 767.04, Florida Statutes (2007), made Scott and Cassandra Gawtrey exclusively liable to persons bitten by their dog....

...Gawtrey intentionally opened the sliding glass door to allow the visibly agitated Dozier to enter the house. Third, the presence of Scott and Cassandra Gawtrey on the verdict form as Fabre defendants made it *744 probable that the jury would assign all or substantially all of the liability to them as the dog's owners. See § 767.04; cf. Registe v. Porter, 557 So.2d 214, 215 (Fla. 2d DCA 1990) (noting that "section 767.04 imposes absolute liability upon a dog owner for a dog-bite when the dog-bite victim is ....

...Wall's injuries." (citations omitted)). B. So far the decisions we have canvassed are, like the case before us, cases that arose under section 767.01, where a dog caused injury to someone, but not by biting them. Section 767.04 is a separate statute, entitled "Dog owner's liability for damages to persons bitten." This section states: The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or...

...other remedy provided by statute or common law. Whatever else he may have done during his escape from the Parsons' backyard, Bogey never bit Ms. Culp. Her injuries were the result of a fall, not a bite. If this were a matter of first impression, we would hold that section 767.04, and the bite-related defenses it includes, is simply inapplicable to this case....

...to Governor re Implementation of Amendment 4, the Voting Restoration Amendment, 12 288 So. 3d 1070, 1078 (Fla. 2020))); Josephson, 173 So. 2d at 465 ("It is obvious from the careful reading of the two sections that § 767.01 was superseded by § 767.04 only in regard to dog bites, because § 767.04 says 'bite' not injury....

...chased him up a fence. The plaintiff filed separate counts against the security company that provided the dogs under sections 767.01 and .04.2 2 By the time Rattet came before the Third District, the Florida Supreme Court had concluded that section 767.04 was a stand- alone, statutory cause of action that superseded any common law claim of negligence in circumstances covered by the statute....

...tim is specifically warned by a sign."); Carroll v. Moxley, 241 So. 2d 681, 682 (Fla. 1970) ("The contention that Plaintiffs have a cause of action both 13 Id. at 950. The Third District disposed of the plaintiff's section 767.04 claim (because the plaintiff had not been bitten; he fell from a fence)....

...at 950. The court also affirmed the summary judgment against the plaintiff's section 767.01 claim because the dealership had posted "bad dog" signs around the lot. Id. at 950- 51. Although the posting of such signs would constitute a defense under a section 767.04 dog bite claim, the Rattet court reasoned that the statutory defenses listed under section 767.04 should also be available to a section 767.01 claim....

...spite the fact that he or she provoked the dog or 'bad dog' signs had been properly posted." Id. (footnote omitted). And that "would violate the well established principle that statutes must not be construed so as to produce under Fla.Stat. s 767.04, F.S.A., and the common law is without merit. . . . It is concluded that Fla.Stat. s 767.04, F.S.A., supersedes the common law, only in those situations covered by the statute."). 14 unreasonable or ridiculous consequences." Id....

...The Florida Supreme Court agreed, approved the district court's decision, and adopted Rattet's rule in its entirety: We agree with the Third District Court of Appeal in the instant case that there are no common law defenses to the statutory cause of action based on sections 761.01 and 767.04, Florida Statutes (1981)....

...an owner or occupant of property is not liable to a police officer or a firefighter for injuries sustained during the discharge of the duties for which the policeman or fireman was called to the property."). 15  by statute under section 767.04 apply. We also agree that those defenses apply to a claim under section 767.01. Id. at 218 (emphasis added). Sklar's holding concerning the applicability of section 767.04 defenses to section 767.01 claims has not been modified or altered since its issuance. C. With this backdrop, we can now turn to the merits of the Parsons' argument....

...pronouncement, "[n]or is there room in this strict liability statute for the avoidance of liability on the ground that the plaintiff or the owner or some third party also contributed to the injury," 463 So. 2d at 1157, or Sklar's holding that the defenses of section 767.04— which now include comparative negligence—are available in a section 767.01 claim? Although the judge gave this issue careful deliberation, we believe the court erred when it deprived the Parsons of their comparative negligence defense under section 767.04. 16  Granted, Sklar did not purport to recede from Jones....

...2d 314, 316 (Fla. 4th DCA 1995) ("[H]istorically, tort liability for injuries caused by dogs has evolved with its very own unique set of statutory and common law rules."). And Sklar's pronouncement was unequivocal and unqualified: the defenses of section 767.04, whatever they may be, are available to defendants in a section 767.01 claim. Comparative negligence was added to section 767.04 in 1993, some four years after Sklar, see ch....

...In line with Sklar (and in the absence of a legislative pronouncement of 17 intent to otherwise alter the common law that had developed prior to the amendment's passage), we conclude that the comparative negligence defense provided under section 767.04 is available to a litigant defending against a section 767.01 claim. It is true, as Ms. Culp points out, section 767.04's defense of comparative fault, like the other defenses in that section, speaks in terms of "persons bitten" and "dog bites," which, under an ordinary, plain meaning of the section's text would not seem applicable to this case. Section 767.04 has always been rife with references to dog bites....

...Consistent with Sklar and how our sister district courts of appeal have viewed its application of sections 767.01 and .04, we hold that a defendant to a section 767.01 claim is entitled to present all the defenses, including comparative negligence, that are set forth in section 767.04. Accord Davison v. Berg, 243 So. 3d 489, 490 n.1 (Fla. 1st DCA 2018) ("The defenses found in section 767.04, which concerns dog bites, are equally applicable to 'damage' from 18 dogs as set out in section 767.01." (citing Sklar, 548 So. 2d at 218)); Associated Home Health Agency, Inc. v. Lore, 484 So. 2d 1389, 1390 (Fla. 4th DCA 1986) (citing Rattet and noting that the statutory defenses of section 767.04 applied to an action under section 767.01). Our dissenting colleague would prefer not to follow Sklar. While acknowledging that we, as a lower court, should not "lightly brush aside the contents of an opinion of the Florida Supreme Court," that is precisely what the dissent does....

...5th DCA 1994) ("[T]he supreme court consistently has reaffirmed the principle that chapter 767 supersedes the common law in actions against dog owners for injuries caused by their dogs."); see also Reed v. Bowen, 512 So. 2d 198, 199 (Fla. 1987) ("[S]ection 767.04 makes the dog owner an insurer against damage caused by his dog, subject to certain enumerated exceptions, thus modifying the common law basis for recovery grounded in negligence, and superseding common law defenses."); Belcher Yacht, Inc. v. Stickney, 450 So. 2d 1111, 1113 (Fla. 1984) ("Carroll and Donner, decided thirteen and five years ago, respectively, placed the legislature on notice that section 767.04, Florida Statutes, enacted in 1949, superseded the common law on dog bites. There has been no action by the 21 legislature to amend this law and we are not disposed to revisit the issue."). Only those defenses set forth under section 767.04— which, under Sklar, have become applicable to section 767.01 claims—are available to avoid the "absolute" or "strict" liability section 767.01 imposes. See Donner, 358 So. 2d at 26; Davison, 243 So. 3d at 490 & n.1; Huie, 632 So. 2d at 1112; see also Arellano v. Broward K-9, 207 So. 3d 351, 353 (Fla. 3d DCA 2016) ("Arellano's . . . claim is founded upon section 767.04, which effects the legislative purpose of imposing on a dog owner strict liability for dog bite damages. The statute prescribes a limited exception to such strict liability: the plaintiff's comparative negligence."). Ms. Culp points out, correctly, that section 767.04 does not include a third-party or Fabre defense in its text....

...1984))); Nationwide Mut. Fire Ins. Co. v. Hild, 818 So. 2d 714, 718 (Fla. 2d DCA 2002) ("[T]his court cannot alter or amend the plain language chosen by the legislature."); Huie, 632 So. 2d at 1112 (Fla. 5th DCA 1994) ("[U]ntil the legislature mandates otherwise, section 767.04 supersedes the common law and provides both the exclusive remedy and defenses in a dog-bite action.")....

...29 LABRIT, J., Concurs. ATKINSON, J., Concurs in part and dissents in part. ATKINSON, J., Concurring in part and dissenting in part. I agree with the majority that, according to a proper interpretation of sections 767.04 and 767.01, Florida Statutes (2016), the statutory defenses set forth in the former—the dog-bite statute—should not apply to causes of action brought under the latter—the dog-damage statute. The majority is also correct to note that the Florida Supreme Court has pronounced that the statutory defenses in section 767.04 do apply to a claim brought under section 767.01. See Kilpatrick v. Sklar, 548 So. 2d 215, 218 (Fla. 1989). However, unlike the majority, I do not believe that the pronouncement in Sklar compels us to apply section 767.04's comparative negligence defense to causes of actions brought under section 767.01....

...The only defense at issue in Sklar was a common law defense. The question was whether the Fireman's Rule was an available "defense for a dog owner regarding a claim for injuries under section 767.01," Sklar, 548 So. 2d at 215, and none of the statutory defenses in section 767.04 were at issue. See id. at 218 (holding that the defense did not apply to the claim because "there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04"). As such, the court's unnecessary expression of agreement "with the Third District that only those defenses provided by statute under section 767.04 apply" and "that those defenses [also] apply to a claim under section 767.01," id. (citing Rattet v....

...A statement in a judicial opinion that is "unnecessary to the resolution of the issue before the court" constitutes dicta and is "not controlling judicial precedent." Cirelli v. Ent, 885 So. 2d 423, 427 (Fla. 5th DCA 2004). The statement in Sklar that the statutory defenses of section 767.04 apply to causes of action brought under section 767.01 does not have the weight of controlling precedent. While I would agree that district courts should not lightly brush aside the contents of an opinion of the Florida Supreme...

...4th DCA 1970) ("We acknowledge that dictum of the Supreme Court in the absence of a contrary decision by that court should be accorded persuasive weight by us." (emphasis added) (citing Milligan v. State, 177 So. 2d 75 (Fla. 1965))). As acknowledged by the majority, the pronouncement in Sklar that the section 767.04 defenses apply to section 767.01 claims is contrary to the Florida Supreme Court's earlier Jones opinion, in which the Court held that there is no "room in this strict liability statute[, section 767.01,] for the avoidance of liabi...

...section 767.01—was addressing the common law defense, because the statutory comparative negligence defense had not yet been added to either statute at the time the opinion was issued. However, because the statutory comparative negligence defense was added only to section 767.04, the dicta in Sklar—generally pronouncing that the defenses in section 767.04 apply to claims under section 767.01—is in irreconcilable tension with Jones's specific holding that comparative negligence is inapplicable to claims under section 767.01....

...2d at 215 (addressing "application of the Fireman’s Rule . . . as a defense for a dog owner regarding a claim for injuries under section 767.01"). We should not give more weight to the Sklar opinion's inessential reference to the applicability of section 767.04 defenses to section 767.01 claims 35 than we do the Florida Legislature's decision to add a comparative negligence defense only to section 767.04....

...9; and then citing Estate of Williams ex rel. Williams v. Tandem Health Care of Fla., Inc., 899 So. 2d 369, 374 (Fla. 1st DCA 2005)). Because we should not apply the dicta in Sklar to the question of whether the comparative negligence defense in section 767.04 should be applied to cases brought under section 767.01, I would affirm the judgment of the trial court....

...or attack and security purposes constituted a nuisance in the residential neighborhood where all of the parties resided. The appellees have conceded that the judgment does not apply to the appellants’ posting of signs pursuant to the provisions of section 767.04, Florida Statutes (1981)....

...ngerous thing. While one or two jurisdictions insist that there is no liability without some negligence in keeping the animal, by far the greater number impose strict liability.” (Italics supplied) Additionally, we observe that Florida has enacted § 767.04, F.S.A., 5 relating to dogs, which abrogates the permissive “one bite” rule of the common law....

...However, any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person’s negligence contributed to the biting incident. § 767.04, Fla....

...the incident. In this case, the trial court essentially determined that Arellano’s actions effectively dispossessed K-9 of ownership of the dogs, and broke the chain of proximate causation so as to relieve K-9 from the strict liability imposed by section 767.04....

...an a tortfeasor’s negligence – caused the plaintiff’s damages. See, e.g., Valdes v. Miami Herald Publ’g Co., 782 So. 2d 470, 471 (Fla. 3d DCA 2001). Arellano’s claim, however, is not one sounding in negligence; her claim is founded upon section 767.04, which effects the legislative 5 purpose of imposing on a dog owner strict liability for dog bite damages....

...We remand the case to the trial court for proceedings consistent herewith. Reversed and remanded. 3The statute provides another limited exception when the dog bite occurs on the owner’s private property and the owner has posted a “Bad Dog” sign. § 767.04, Fla....

COBB, Judge. The issue in this case is whether a four year old child can be deemed to have mischievously provoked or aggravated a dog, thereby precluding the owner’s liability pursuant to section 767.04, Florida Statutes (1985), which provides: 767.04 Dog owner’s liability for damages to persons bitten....

...Judge Rawls, dissenting in Harris , noted that the majority opinion was founded on a common law rule that a child under six is legally incapable of negligence. Since common law rules apply only in the absence of a legislative declaration, and the legislature has declared via section 767.04 that the affirmative defense of careless provocation is available without any reference to the age or other disability of the person committing the act, Judge Rawls felt the common law had been modified and, thus, a child could fall within the statute’s proscription....

...Although Harris is distinguishable from the instant case, since it turned on the issue of careless rather than mischievous conduct by a child, we agree with the rationale of the dissent therein, which is in accord with the repeated declarations by the Florida Supreme Court that section 767.04 supersedes the common law. See Noble, Belcher Yacht and Carroll . We *930 are persuaded that had the legislature intended to exempt young children from the statutory defenses provided by section 767.04, it would have been a simple matter for it to say so....

...Other courts have reached the same result. See Nelson v. Lewis, 36 Ill.App.3d 130 , 344 N.E.2d 268 (1976); see also Annot., 66 A.L.R.2d 916 , Injury by Dog-Defenses to Action, (1959). We hold that a child of tender years can mischievously provoke a dog under Section 767.04 and, thus, afford a complete defense to the dog owner....

...es. It was not error to grant this motion. Also at the close of all of the evidence the court denied a motion for a directed verdict against the defendant in favor of the minor plaintiff. The defendant’s liability in this case was governed by F.S. Section 767.04, F.S.A., 1 which statute *758 makes the dog owner’s liability absolute unless the owner is within one of the exculpatory provisions thereof....

...The judgment in favor of the defendant on the claim of James Minisall, a minor, is reversed and this cause is remanded for a new trial limited to the issue of the minor plaintiff’s damages. Affirmed in part; reversed in part. McCAIN, J„ and STEWART, JAMES R., JR., Associate Judge, concur. . 767.04 Liability of Owners....

...es incurred by a police officer or firefighter during the discharge of duties for which he was called to the property, barred Kilpatrick’s recovery. Sklar also contended that his posting of a warning sign, one of the statutory defenses provided by section 767.04, Florida Statutes (1981), 2 barred Kilpatrick from recovering damages....

...an adverse summary judgment because section 767.01 abrogates the fireman’s rule as a defense. He also cites the presence of material issues of fact regarding whether the sign allegedly posted on appellees’ property fulfilled the requirements of section 767.04, Florida Statutes (1981)....

...We agree that genuine issues of fact exist and reverse the summary judgment in favor of Sklar; we affirm, however, as to Dr. Ferrer. Chapter 767 renders dog owners strictly liable for damages or injuries to persons caused by their dogs. §§ 767.01, 767.04. The Florida supreme court has consistently ruled that section 767.04 supersedes the common law and, therefore, abrogates common-law defenses in situations covered by the statute....

...Moxley, 241 So.2d 681 (Fla.1970). Thus, a dog owner may no longer assert the fireman’s rule as a defense against recovery by a police officer who enters on private property “in the performance of any duty imposed upon him by the laws of this state_” § 767.04. In Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979), cause dismissed, 447 So.2d 887 (Fla.1984), this court held that the defenses available in section 767.04 are also applicable to causes of action accruing under section 767.01. Ac *1291 cordingly, in light of the interrelationship of the two statutes, and the case law interpreting section 767.04, we hold that the fireman’s rule does not protect a dog owner in a lawsuit for damages under section 767.01. Because the fireman’s rule is not a defense under sections 767.01 or 767.04, appellees may avoid liability in this case only if they prove one of the statutory defenses in section 767.04 or if they do not own the dogs....

...Affirmed in part; reversed in part; remanded with directions. . Section 767.01, Florida Statutes (1981), provides: Owners responsible. — Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons. . Section 767.04, Florida Statutes (1981), provides: Liability of owners....

PER CURIAM. Affirmed. See Donner v. Arkwright-Boston Manufacturers Mutual Insurance Company, 358 So.2d 21 (Fla.1978); Lawrence v. Bowen, 503 So.2d 1265 (Fla. 2d DCA 1986); Section 767.04 Florida Statutes (1983).

GOLDMAN, M., Associate Judge. Plaintiffs sued for damages received as a result of a dog bite. The first Count of a two count amended complaint sought damages pursuant to F.S. 767.04....

...should be denied and leave to amend should be granted.” Plaintiff sought leave to sue the Defendant, Jerry Noble, upon a theory of common law liability as a property owner who did not own the offending canine. *351 Since the strict liability of F.S. 767.04 is limited to the actual owner of the dog, such a cause of action would lie....

...Manucy, 362 So.2d 478 (Fla. 1st D.C.A. 1978). Accordingly, the trial court erred in granting summary final judgment and denying Plaintiffs request for leave to amend. Substantively Plaintiffs urge that the doctrine of equitable estoppel bars Defendants reliance upon F.S. 767.04....

...of fact, nor to immunize those whose misrepresentations cause injury from liability therefore. The doctrine of equitable estoppel is deeply ingrained in our jurisprudence, and should not be abrogated except by specific legislative mandate. Neither F.S. 767.04 nor the decision in Belcher expressly eliminate the applicability of equitable estoppel, and we feel that the same is viable in an action under F.S. 767.04....

...We do recognize that this specific point has not been previously ruled upon, and consider it to be of great public importance. We therefore certify the following question to the Supreme Court: “IS THE DOCTRINE OF EQUITABLE ESTOPPEL AVAILABLE TO AVOID THE EXEMPTION FROM LIABILITY CREATED BY F.S. 767.04.” ANSTEAD, C.J., and GLICKSTEIN, J., concur....

common-law defense to an action brought under section 767.04, Florida Statutes (1989); thus, we reverse

DCA 1975). However, the statutory defenses of section 767.04, Florida Statutes (1983), which apply to an

...done by his dog.” (footnote omitted))). The only total defense to liability available in a section 767.01 action is for a dog owner to have “displayed in a prominent place on his or her premises a sign easily readable including the words ‘Bad Dog.’” § 767.04, Fla....

...v. Moxley, 241 So. 2d 681, 683 (Fla. 1970); see also Romfh v. Berman, 56 So. 2d 127, 129 (Fla. 1951), overruled in part by Sweet v. Josephson, 173 So. 2d 444 (Fla. 1965) (“The sole purpose of the legend was to put one 1 The defenses found in section 767.04, which concerns dog bites, are equally applicable to “damage” from dogs as set out in section 767.01....

...The Florida Supreme Court held that the Fireman’s Rule—which precludes policemen and firemen from recovering from a property owner for injuries arising from their professional duties—was inapplicable, noting that “there are no common law defenses to the statutory cause of action based on sections 767.01 and 767.04, Florida Statutes (1981).” Id....

...regard for lack of negligence or other reasonable common law arguments. See Huie v. Wipperfurth, 632 So. 2d 1109, 1112 (Fla. 5th DCA 1994), approved, 654 So. 2d 116 (Fla. 1995); Freire v. Leon, 584 So. 2d 98, 99 (Fla. 3d DCA 1991). 2 2 We note that all cases cited construed section 767.04 before its 1993 amendment, which replaced the defense of provocation with comparative negligence, and permitted plaintiffs to seek other remedies outside chapter 767....

...conclusion that Davison consented to the risk of injury, an actual consent or assumption of the risk defense cannot bar liability. Rather, the Legislature requires these facts to be presented to the jury for a determination of comparative negligence, in accordance with section 767.04. For these reasons, we reverse the trial court’s entry of final summary judgment in favor of Berg. REVERSED. RAY, BILBREY, and WINOKUR, JJ., concur. 5th DCA 1994), approved, 654 So....

...Similarly, section 767.01 was amended in 1994 to clarify which “domestic animals” and “livestock” dog owners could be held liable for. See Ch. 94-339, § 1, at 2433, Laws of Fla. These amendments do not reflect any changes in the strict liability nature of section 767.01 or the defenses available under section 767.04, aside from permitting a broader range of a plaintiff’s conduct to be presented to juries as comparative negligence. 4  _____________________________ Not final until disposition of any timely and authorized motion under Fla....

...Thereafter, defendants filed a motion for summary judgment. They alleged that Ramos’s claims failed because he did not sue an indispensable party, namely, the owner of the attacking dog. Defendants alleged that under 2 section 767.04, Florida Statutes (2018), the owner of a dog that bites any person while such person is on or in a public place or lawfully on or in a private place is liable for the damages suffered....

...persons or to any animal by his dog. In May 2021, the county court held a hearing on defendant’s summary judgment motion and entered summary judgment in favor of the defendant.1 In the final judgment, the trial court stated that sections 767.01 and 767.04 are strict liability statutes....

...s. The trial court found that these two statutes prohibited Ramos’s negligence claims against both defendants. After the final judgment was entered, Ramos appealed. Among his arguments on appeal, Ramos contends that sections 767.01 and 767.04 are inapplicable in this case because neither of the defendants were actual owners of the dog that injured Ramos’s dog....

..., thus, there is no transcript. 3 760 So. 2d 126, 130 (Fla. 2000). The trial court improperly granted defendants’ motion for summary judgment because it erred with respect to the application of sections 767.04 and 767.01. Section 767.01 states, “Owners of dogs shall be liable for any damage done by their dogs to a person or to any animal included in the definitions of ‘domestic animal’ and ‘livestock’ . . . .” In turn, section 767.04 states: The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffe...

...Ramos 4 alleged two counts of common law negligence in his amended complaint. His amended complaint was not based upon the strict statutory liability of a dog owner, as he did not allege a claim under either section 767.01 or section 767.04. Thus, although Ramos could have sued the owner of the attacking dog, he did not. Sections 767.01 and 767.04 are silent as to keepers or custodians of dogs, which allows for a common law negligence action against a business and business owner by a business invitee for damages sustained at the business premises. Noble v. Yorke, 490 So. 2d 29, 31-32 (“However, in Belcher [Yacht, Inc. v. Stickney, 450 So. 2d 1111, 1112 (Fla. 1984)), we noted that the strict liability of section 767.04 is limited to dog owners and a dog-bite victim may sue the non-owner of the dog upon a theory of common law liability....

...when her daughter was bitten. She heard a cry, spun around, and saw Olga Maria’s bloody face. The child sustained permanent scarring which may require reconstructive surgery. Mrs. Freire filed a complaint premised on Florida’s dog-bite statute, section 767.04, Florida Statutes (1989), which, recognizing only two statutory defenses, makes the dog owner an insurer against damages caused by his dog’s bite....

...evidence in a jury trial. The questions presented by this appeal are (1) whether by posting a “Beware of Dog” sign an owner of a dog is immune from statutory liability where the dog bites a person lawfully on the owner’s property, (2) whether Section 767.04, Florida Statutes (1979) 1 superseded the common law 2 and now provides the exclusive remedy for a dog bite plaintiff....

...rds “Beware of Dogs”; that before entering the premises the plaintiff saw and understood the signs; that the plaintiff had done nothing to provoke or aggravate the dog; and that the dog attacked and bit him. On those facts, the court held: Since Section 767.04 is the applicable law and it is admitted that the plaintiff was lawfully on defendant’s premises, and that he did not provoke the dogs, it would seem that the question here reduces itself to that of whether or not the sign with the w...

...1st DCA 1978) (protection for the safety of an adult, who can read and understand a warning sign, is not necessarily protection of an unexpected three-year old child). The question presented by the second issue is not so well-settled although two supreme court cases hold that Section 767.04, Florida Statutes, superseded the common law in those situations covered by the statute....

...3 Donner v. Arkwright-Boston Manu *965 facturing Mutual Insurance Co., 358 So.2d 21 (Fla.1978); Carroll v. Moxley, 241 So.2d at 682 . Carroll v. Moxley is the first Florida Supreme Court case to hold that the common law on dogbites was superseded by section 767.04, relying on Romfh v....

...The court disposed of the contention in a single sentence: “the statute in terms relieves the owner when the posted sign bears the legend ‘Beware of Dogs’, so there is no reason for construction.” In a separate discussion, later recognized as mere obiter dictum, the Romfh court held that section 767.04 (dog bite statute) superseded section 767.01 (applicable statute where dog causes damage by other than bite)....

...nowledge of the dog’s vicious propensity), as was required under common law pleadings. It was held, with respect to the first count, that “allegations of scienter were unnecessary since Section 7044, Compiled General Laws of 1927 (predecessor to § 767.04) provides that owners of dogs shall be liable for any damages done by them to ......

...3d DCA 1957), the question before the court was whether the defenses of contributory negligence and assumption of risk were available in a statutory action where a dog causes injury by other than a bite. The Vandercar court held, without addressing the question whether section 767.04 supersedes sectiop 767.01, the fact that liability is imposed by statute does not require rejection of a contributory negligence or assumption of the risk defense. This court observed in Josephson v. Sweet, 173 So.2d 463 (Fla. 3d DCA 1964) that the Romfh court unnecessarily held that section 767.04 superseded section 767.-01. Later, the supreme court agreed and expressly receded from the Romfh obiter dictum; it held that section 767.04 supersedes section 767.01 only where the dog-caused injury is the result of a bite....

...usiness establishment which owns the dog — a conclusion which is manifestly more just. Reversed and remanded for a new trial. We certify the following question to the Supreme Court of the State of Florida as one of great public importance: WHETHER SECTION 767.04, FLORIDA STATUTES (1979) SUPERSEDED THE COMMON LAW AND NOW PROVIDES THE EXCLUSIVE REMEDY IN A DOG BITE ACTION BROUGHT BY AN ECONOMIC INVITEE AGAINST A BUSINESS ESTABLISHMENT WHICH OWNS THE DOG. . § 767.04, Fla.Stat....

...has vicious propensities abnormal to its class is liable for the harm the animal causes to others. Zarek v. Fredericks, 138 F.2d 689 (3d Cir.1943). . What is a situation covered by the statute is not clear. We do know that situations not covered by section 767.04 are (1) where the landowner is not the dog owner, e.g., Flick v....

...his animal has vicious propensities abnormal to one of its class. And even if scienter be established, liability, total or partial, does not automatically flow. . We have found two cases in this district where the court was called upon to interpret section 767.04, neither of which conflicts with the conclusion reached herein....

...We do not find Flick to be analogous enough to be persuasive, but if so, our resolution of this case is in conflict. The issue we are called upon to decide is whether a conspicuously-posted, easily readable, English language “Bad Dog” sign, posted pursuant to section 767.04, Florida Statutes (1983), is ineffective to protect the owner of the posted premises from liability for a dog-bite because the dog-bite victim was unable to read or write English....

...tive to protect the property owner from liability regardless of the victim’s failure to understand the warning solely because of an inability to read or write English. Our supreme court has several times analyzed the legislative intent in enacting section 767.04. In Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla.1984) and Carroll v. Moxley, 241 So.2d 681 (Fla.1970), the supreme court clearly held that section 767.04 has superseded the common law in those situations covered by the statutes. Moreover, the court in Belcher emphasized that the legislature had not revisited section 767.04 by way of amendment or otherwise since Carroll and Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla.1978), were decided. As those cases note, section 767.04 imposes absolute liability upon a dog owner for a dog-bite when the dog-bite victim is in a public place or lawfully on or in a private place except when the dog is carelessly or mischievously provoked or when the owner has displayed i...

...ability to comprehend the language of the sign, then the dog owner’s protection from absolute liability will be severely eroded. If that were the case, even though Belcher and Carroll have held that the common law has been completely superseded by section 767.04, it would force a re *216 turn to the common law to determine the respective rights and duties of the parties because no dog owner could be expected to post a sign in the particular language of every conceivable victim. We do not believe that to have been the legislative intent. The fifth district in Flick so interpreted section 767.04 in the case of a three-year-old child....

...We agree with the district court’s holding on this issue.... 450 So.2d at 1112 (emphasis supplied). While we acknowledge those supreme court obiter dictum references to a need for actual notice to a dog-bite victim by means of the posted signs required by section 767.04, we conclude that in no case has the supreme court actually imposed such a requirement....

...Houghton Mifflin Company, The American Heritage Dictionary of the English Language (New College Edition 1979) states the primary or preferred definition of “readable” as: “Capable of being read easily; legible.” We conclude, therefore, that the legislature in enacting section 767.04 imposing a requirement for a sign “easily readable,” was clearly intending a sign that was “legible” and “capable of being read.” Furthermore, we also conclude that this requirement is for a sign that is capable of being re...

...NOTES [1] It is apparent that the legislature, perhaps in a compromise with the cattle industry, (an industry important to the state), did not intend the strict liability that it imposed on dog owners. Consider the difference in the statutes involved herein and section 767.04: The owner of any dog that bites any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, is liable for damages suffered by persons bitten, regardles...

...fact that the minor plaintiff, a next-door neighbor, was an invitee on the premises, does not mean that the defendants thereby implicitly disavowed the sign’s warning so as to equitably estop them from asserting the defense available to them under Section 767.04, Florida Statutes (1983)....

...ed to rely on sign) with Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla.1984) (that plaintiff was a business invitee on premises where sign warning of bad dog displayed does not equitably estop defendant from relying on defense available under Section 767.04, Florida Statutes)....

...The trial court having found that the signs were posted in accordance with the Statutes, and in fact the record indicates that there were numerous signs on the premises, we find that no liability should have been imposed against the defendant in the trial court because of the provisions of Section 767.04, Florida Statutes (1979), which reads in part as follows: “....

PER CURIAM. Affirmed. See Romfh v. Berman, Fla. 1952, 56 So.2d 127 ; Vandercar v. David, Fla.App.1957, 96 So.2d 227 ; Section 767.04, Florida Statutes, F.S.A.

...In moving for summary judgment, Dres-ner contended that under the rationale of Belcher Yacht, Inc. v. Stickney, 450 So.2d 1111 (Fla.1984), the prominently displayed “beware of dog” sign provided an absolute defense to the dog attack pursuant to section 767.04, Florida Statutes....

...h would have directly resulted in injury to her person. The trial court granted summary final judgment in favor of Dresner. On appeal, Godbey asserts that the doctrine of equitable estoppel is available to avoid the exemption of liability created by section 767.04, thereby giving rise to a material issue of fact which would preclude the entry of summary final judgment....

...sign displayed on the property, stated that: [Ajbsent specific statutory provision, there is no rule of law which in general exempts statutory rights and defenses from the operation of the doctrine of equitable estoppel. Significantly, the statute [section 767.04] neither expressly disallows application of the doctrine nor contains language suggesting such a result....

...Our holding fully comports with the intent of the legislature and *802 prior case law interpreting section 767.-04. 490 So.2d at 29 . The court further noted that the availability of the doctrine of equitable estoppel to avoid the exemption of liability contemplated by section 767.04 is similar to a situation in which a jury may have to decide whether a “bad dog” sign provided effective and genuine notice as required by the statute. If such were found not to be provided, a party would not be entitled to the absolute defense set forth in section 767.04....

...Yorke, we cannot say that Dresner has conclusively negated the theory of equitable estoppel. Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings. FRANK, J., and PATTERSON, DAVID F., Associate Judge, concur. . Section 767.04 provides in pertinent part: [N]o owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such...

...Appellant was appellee’s long-time postman. He was delivering mail, as he usually did, to the mailbox located just outside appellee’s four-foot fence. On the gate through the fence was affixed a “bad dog” sign; a warning in accordance with section 767.04, Florida Statutes....

...hold that the adequacy of the warning is a jury question and the verdict form erroneously preempts the jury from making a finding on a proper issue. *908 REVERSED and REMANDED for new trial. SHARP, J., and BOARDMAN, E.F., Associate Judge, concur. . § 767.04, Fla.Stat....

PER CURIAM. The lower tribunal granted summary final judgment in favor of appellees, on the ground that appellee Malino’s decedent was immune from liability by virtue of Section 767.04, Florida Statutes....

...The Flicks filed two suits, one of which named Pat Malino individually as defendant. See Flick v. Malino, 356 So.2d 904 (Fla. 1st DCA 1978). The instant case involves Mrs. Mali-no as personal representative of her husband’s estate. She argued successfully before the lower tribunal that Section 767.04, which imposes a strict liability upon dog owners, also protects from liability a dog owner who displays “in a prominent place on his premises a sign easily readable including the words, ‘BAD DOG’.” The trial judge erred in granting summary judgment for Mrs....

...We hold that “easily readable” means the plaintiff must have had ability and opportunity to read the warning sign, and in this case there was no dispute as to the fact that Jennifer Flick was incapable of reading the warning sign. We note in passing that Section 767.04 requires a plaintiff to have been on a dog owner’s premises lawfully in order for strict liability to apply, but the pleadings in this case raise a factual dispute as to whether Jennifer Flick and her mother had been invited onto the Malino property prior to the dog bite....

charged solely on the defenses expressed in Section 767.04. Prior to legislative enactment, the common